Protecting Public Space

Sat, 08/03/2013 - 12:00am

A Case of Pocket Park Improvements Gone Awry

By

Andrew Lightman and Peter J. Waldron

Landscape plan excerpted from West’s Public Space Permit.

At a recent meeting of ANC 6A's Transportation Committee, Joyce West tearfully apologized for shooing away neighbors from a pocket park directly adjacent to her home. The park, the southern section of Federal Reservation 266, sits at the confluence of Tennessee Ave. and 13th St. SE.

In early 2013, West secured permission from the DC Department of Transportation (DDOT) to improve the “parked space” in front of her house at 147 Tennessee Ave. NE, and the section of the Reservation 266 abutting her property. Investing several thousand dollars in landscaping, she created a band of attractive flower beds along the edges of her front yard that continued around half the park's periphery. She also planted ornamental hedges behind the beds. West located more bushes in a large bed that stretched from the left side of her front steps along the wall of her home to the point where it meets her neighbor house. She then extended this landscaping out into the center of the adjoining section of Reservation 266.

The park before West's improvements. Photo: Google Earth

West's landscaping now enclosed half of the pocket park. While retaining open egress from West's front yard, it limited public access to a small entrance at the parcel’s center. “As I have told my neighbors, our vision for the space is to create and maintain a beautiful ornamental public flower garden for ALL to enjoy as they walk by—not a secret, hidden garden for our pleasure,” wrote West and Mark Kadesh, her husband, in a June 3rd letter to Councilmember Tommy Wells and Chief Public Space Enforcement Officer Elliot Garrett.

The result, while undeniably attractive, physically reconfigured the adjoining section of Reservation 266 into a private side yard. West and Kadesh treated the parcel as such, repeatedly asking interlopers to vacate.

Lisa Turner, a neighbor, stated at a public meeting that West had ordered her off the park. Her daughter, she adds, had been asked to leave on a separate occasion. Others have confirmed this to be a pattern of behavior on the part of West and her husband.

“I was really bothered when I heard that the owner of the house yelled at some neighborhood friends of my daughter, who had been playing in the ‘grassy meadow.’ The owner apparently asked them how they would feel if he began playing in their front yard. I argue that he should not have purchased a home next to a public park if he felt that way. I used to live next to a beautiful section of Rock Creek Park. Although I felt like it was my back yard, it certainly was not mine,” wrote neighbor Christine Mullins in an email to Wells.

“I do not have a recollection of this. It is conceivable,” West responded when asked by The Hill Rag about the policing of the park by her and her husband.

West, for her part, has collected many letters of community support for her improvements. For example, in a May 24th email to Wells' office, neighbor Cynthia wrote:

“I am highly supportive of the residents of 147 Tennessee Avenue's plans to make DC public space to the north of their home an ornamental flower garden as it is now designed. The design and new plantings have greatly improved the space and it is a major improvement for the neighborhood.”

Over the years, West insists, multiple District agencies had informed her of her responsibility for the care of the neighboring section of Reservation 266. However, she was unable to produce or cite specifically a single communication from the District when asked to do so by the Hill Rag.

Part of her rationale for the landscaping is that the city has not maintained the lot. “The city has not mowed or maintained the space since we have lived here,” stated West.

One might dismiss the whole dispute as a tempest in a teapot. However, Reservation 266 is one of many pocket parks that border the sides of private residences. Should a well-meaning neighbor be allowed to transform public land in a way that changes its community usage? How would residents react if a neighbor of Turtle Park across from Eastern Market declared it to be a private preserve?

Pocket Parks and “Parked” Public Space: A Confusing History

The District of Columbia controls a multitude of scattered and small parcels of land known as “pocket parks.” Most are a result of the diagonal streets designed by Pierre L’Enfant. Others are artifacts of early streetcar routes. Many are federally owned. There are 1,132 such parcels in DC.

Pocket parks and federal reservations are only one facet of the District’s special patrimony. L’Enfant’s 1791 plan created wide rights of way for the nation’s new capitol. East Capitol Street, for example, was envisioned as a garden boulevard lined with foreign embassies. However, the city’s subsequent growth to the west and north left his vision unrealized.

In 1870, Congress recognized the unlikelihood of many of these large rights of way ever being completely paved. The Parking Act allowed for a narrowing of the public thoroughfares by “parking” public land in front of homes. This moniker might be confusing to modern ears. The 19th century term “parking” referred to a street-scape composed of a series of miniature parks. At the end of the century, Congress explicitly awarded private property owners the right to use this public space as front and side yards to their properties.

Short open fences are permitted to define the parked public spaces, but limited to three feet in height. Bushes are limited to three feet; and forbidden to obscure vehicular or pedestrian visibility. The District polices vehicular parking, construction, trash, rodents and trees in the “parked” space. Historically, “parked land” excluded federally owned reservations or municipal parks. Differences between the two are clearly distinguished on the District’s Zoning Map.

In the case of U.S. Reservations, a number were transferred to the District with the advent of Home Rule in 1972; others during the administration of George W. Bush. The DC Department of Parks and Recreation (DPR) assumed responsibility for many of these parcels. Others were assigned to DDOT for transportation purposes. The rationale for this division remains obscure.

Reservation 266 was among the parcels transferred to the District’s jurisdiction in 1972. Three of its four sections of parcel are under the control of DPR (DPR1273). According to an official DPR map, the section next to West’s home is not among them. It falls under the purview of DDOT.

Public Space Permit Secured

DDOT is the primary District agency responsible for overseeing all public space outside of government buildings, school facilities and parks. The “parked” public space surrounding Capitol Hill homes falls under their administration. In late 2012, West applied to DDOT for a Public Space Permit to improve the “parked” property in front of her residence as well as half of the section of Reservation 266 that abutted her home. The application package included plans for fencing and a patio on this section of the Reservation.

According to the DDOT website, The Public Space Committee (PSC) meets monthly to review and render decisions on Public Space applications. The Committee is composed of representatives from various District agencies such as DDOT, DDOE, The Mayor’s Office and The Office of Planning. It is unclear whether West’s application ever went before the committee.

“GIS shows that the green area to the north (left) of the house is not public green space affiliated with this house. It is Reservation 266. Reservations are generally public parks under the jurisdiction and management of the National Park Service, with some having been transferred to the DC government ownership...The applicant’s plans show paving, planting, and fencing around federal/DC government property.”

She continued,

“If this is indeed a federal or city reservation, then HPO objects to the plan for work in this area.”

In January of 2013, the application was revised without a patio and with bushes replacing the fence. DDOT issued West a permit in March of 2013. The agency provided no notice of its action to Advisory Neighborhood Commission 6A.

Neighbors Object

On the morning of April 30, 2013, Elizabeth A. Nelson, a neighbor and community activist, walked by the pocket park with her dog. She was surprised to see a large construction project underway at West’s home. The landscaping work appeared to reconfigure half the pocket park into their existing yard. Perplexed, she fired off an email to Molson, her contact at the HPO, with pictures of the work.

Nelson received this response:

“The owner of the corner house (147) has a public space permit, which I approved after much discussion with her architect and several revisions. The pocket park at the corner is a former federal Reservation, which was turned over to DC ownership and management by NPS a number of years ago. Her original plans showed that she wished to fence the pocket park into her yard and also build a patio in the space, neither of which were appropriate. Under her revised plans, she will be rebuilding her front steps and landing, which are in need of repairs, and replacing paving alongside and in front of her house. She also included in her plan a number of plantings for the pocket park alongside her house. HPO does not review softscaping, so we left this portion of the project to her and DDOT to discuss and finalize.”

Alerted by Nelson and another constituent to the construction, Commissioner Nicholas S. Alberti (6A04), whose single member district includes Reservation 266, approached DDOT to ascertain the legality of West’s landscaping. On May 7, he requested copies of the permit from Matthew Marcou, the Chair of The Public Space Committee.

In the meantime, Wells and Alberti began to receive emails from neighbors concerned about West’s landscaping.

“My neighbors have alerted me to the fact that the owners of 147 Tennessee Avenue NE have taken public space near Maury Elementary, which my son attends, and cordoned it off. It especially disturbed me to learn that the owners have been reprimanding children who have crossed this public space. I hope you can address this issue immediately so everyone in the community can enjoy this public space,” wrote neighbor Jennifer Young in a May 19th email.

The Matter Escalates

On May 15, in response to Alberti's missives, James T. Henry, Manager for Public Space Inspections in Wards 6, 7 and 8 recommended that DDOT issue a ‘Stop Work’ order until The Public Space Committee could review West’s landscaping project; and check that there was no issue of encroachment on National Park Service land.

On May 16, an official of DDOT directed Alberti to file a Freedom of Information Act (FOIA) request for West’s Public Space application and permits. “I was taken aback when DDOT refused to provide me with even a copy of the public space permit and application unless I filed a Freedom of Information Act (FOIA) request. Those documents should be publicly available for all permits,” states Alberti. Frustrated, he filed the FOIA; and contacted Councilmember Tommy Wells, who assigned Linda O’Brien, his Deputy Chief of Staff, to the case.

O’Brien, an attorney, immediately questioned DDOT officials on the legality of the permit issued to West. In late May, she convened a meeting at the Surveyor’s Office of representatives of DDOT, DPR, Department of Consumer and Regulatory Affairs (DCRA) to “determine who has ultimate authority over the space and the appropriate process for neighbors who wish to beautify public park space.”

The park after West's landscaping. Photo: Andrew Lightman

“There is urgency to this request as DDOT has issued a stop work order that is costing property owners undue distress and financial setbacks every moment of delay,” O’Brien wrote in her invitation.

O’Brien met again with DDOT on June 20. Representatives of DDOT defended the issuance of the permit to West. They stated their intention to lift the Stop Work order. O’Brien asked them to desist to provide time for her office to broker an alternative with broader community consensus. In the end, DDOT officials stood by their permit and lifted their stop work order in late July. West was able to complete her landscaping project.

ANC 6A Steps In

On July 3, Alberti received a 104-page response to his FOIA that included West’s permit and application. Also attached were 73 emails sent or received by Marcou.

“I was stunned by DDOT’s eventual response to my FOIA request; it contained more than 70 pages of emails with the entire content obscured by black ink. Many of those had a subject line of ‘Team Notes’,” Alberti states.

“What could possibly have been said in those team notes that is so sensitive that they required complete redaction? You would think that this material posed a threat to national security – or perhaps to DDOT,” Alberti said.

Alberti turned to his colleagues on ANC 6A for support. The ANC invited Marcou to the July 15th meeting of the Commission’s Transportation & Public Space Committee to answer specific questions about Reservation 266 and also general queries regarding the process of granting Public Space permits. At that gathering’s onset, Marcou stated that he could not speak to the specifics of any particular permit. He added that he was not there to answer questions, but rather to listen.

Commissioners and audience members questioned Marcou about the general process for issuing public space for improving pocket parks. “I can’t answer that, but it will be in my response next week,” he stated repeatedly. His refusal to answer even the simplest of questions was met at times with groans of exasperation from the audience. “It shouldn’t be this hard,” stated one member of the community, commenting that this was her first and last ANC meeting.

Marcou promised a full and written response to all the questions by “next week.”

On July 18, Marcou emailed the ANC to request more time. The questions were so detailed as to require more investigation, he said. As of the writing of this article, ANC 6A has received no further response.

“For the past three months, Mr. Marcou has declined to engage in any meaningful communications with the ANC on this matter. At the ANC 6A Public Space Committee meeting, he refused to answer even the most basic questions saying he would have to research the question or would have to consult with others within his agency before answering. I don’t see how a person in Mr. Marcou‘s position can function effectively with such a limited understanding of his agency’s policies and practices,” states Alberti.

After the travails of Reservation 266, ANC 6A Chairman David Holmes believes there is a simple solution:

“I believe the District should implement the National Capitol Planning Commission (NCPC) recommendation to transfer control of the District's small public parks from DDOT to the Department of Parks and Recreation. DPR has a different institutional culture, a different mentality, to preserve and enhance our pocket parks, rather than assigning them to private use. The corner parks need to be protected, preserved and enhanced. Parks are probably not a good fit for DDOT's culture and take time away from its principal and essential mission to develop, maintain, and administer the city's streets, sidewalks, street trees, signals and street lights. That's certainly what NCPC saw in its report Capital Space.”

Regrets

In hindsight, West and Kadesh regret their landscaping project. “I never would have done it. The city approved every plant. It was not designed as a private garden,” stated Kadesh in a Hill Rag interview.

“Our pocket parks serve as our communal 'backyard,' an essential part of what makes Capitol Hill special. It does not serve us well when these are re-configured without input from everyone who has a right to use them. In this particular case, dog-walkers and children playing have been disadvantaged because there is no longer room enough for those activities. I’m deeply concerned that we will begin to lose even larger spaces if this practice is allowed to continue,” counters Nelson.

Neighbor, Lisa Turner, feels the same way. “It looks like it is 90 percent enclosed. My concern is that it is not open and inviting. The landscaping is gorgeous, but it is de facto an enclosed circle.”